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Terrorism and Human Rights: Indian Experience with Repressive Laws

Terrorism is growing and no amount of power in terms of the use of force and severity of punishment has been helpful in containing it. This paper examines the ways that the Indian State has been responding to these challenges and scrutinises the experience over six decades of the use of repressive laws and their impact on the very notion of unrestrained freedom which a liberal state is supposed to guarantee.

SPECIAL ARTICLE

Terrorism and Human Rights: Indian Experience with Repressive Laws

G Haragopal, B Jagannatham

Terrorism is growing and no amount of power in terms of the use of force and severity of punishment has been helpful in containing it. This paper examines the ways that the Indian State has been responding to these challenges and scrutinises the experience over six decades of the use of repressive laws and their impact on the very notion of unrestrained freedom which a liberal state is supposed to guarantee.

G Haragopal (ghgss@uohyd.ernet.in) is with Centre for Human Rights, University of Hyderabad; B Jagannatham (jaganmps@gmail.com) is with the Department of Political Science, University of Hyderabad, Hyderabad.

T
he contemporary world is experiencing many unusual movements including the so-called terrorist acts emanating from worldwide unrest. There is an intense debate on these eruptions and ways and means to deal with this rapidly changing alarming global context. The central anxiety regarding these movements is that those who are questioning or challenging the system are armed and do believe in using force to win their point. The state maintains that the ordinary laws meant for regulating the public affairs are not adequate as most of these laws assume a normal society with citizens whose conduct is broadly in conformity with the laws of the land. In fact it is widely believed, certainly with an element of truth, that the laws arise from consensus, if not individual consent of every citizen. The state being responsible for governance derives its power from the laws of the land. Every law confers powers on the State but also limits the power so that power does not become tyrannical. The laws also define the rights and freedoms of citizenry through which their relation with the state is determined. It has been the worldwide experience that it is in the very nature of the state to transgress the limits of the law. In case of citizens at least some sections of the citizenry, there is a tendency to use freedoms to the extent of challenging the very legitimacy of the state. It is, therefore, a civilisational question that how a balance is struck between these two powerful tendencies without abandoning the project of transformation of the human society into a more e quitable, peaceful, fair, just and humane global order.

The jurisprudential equilibrium rests not only on the nature of the state which is dependent on quality and character of the r ulers but also on the levels of contentment, quality of life, the nature of social institutions and instruments of civil society in mediating the relationships in the society. However, it has been the human experience that the “equilibrium” is never everlasting. It is always open to challenge and therefore, the possibility of disequilibrium. It is not that the restlessness in the society is new to human experience. It has always existed in one form or the other; what distinguishes the contemporary means of expressions of restlessness are the levels of force and forms of violence. The invention of fire arms and their widespread availability in the global market brought in altogether new challenges to the system maintenance. One of the significant but anticipated fallouts of these trends has been end of the state monopoly of force (which distinguishes the State from other institutions). In liberal theory the origin of the state is conjectured as a product of social contract arrived at through the consent of the individuals. The contract was necessary as relations between human beings were m ediated through force and it was that arbitrary force in the state of nature that was brought under the regulation of law. It also maintains that every human being is endowed with reason and since reason is superior to raw emotions and uncultivated i mpulses it has been possible to arrive at the acceptance of s upremacy of law.1

1 Introduction

It is also postulated that human beings enjoyed unrestrained freedom in the state of nature. Surrendering part of the freedom was a component of the contract. This surrender was in exchange for security. Thus guaranteeing right to security, in a way, has come to define the basic function of the state. It is precisely for these reasons that the state has been given the power to use the force but the force can and should be used only in a way that the procedure mandates. The procedure is evolved in pursuance of the o bjectives for which the state came into being. Therefore, the e ssence of any law should necessarily be the concern for the right to life and security of every individual. And every law is an e xpression of that part of human nature, which privileges the s ecurity over unrestrained freedom (Paine 1954).

The question that maintenance of law and order rests on mere passing of laws is problematic. Many liberal scholars interpret law as an end in itself. But it is a part of the historical process that the state in its evolution assumed several responsibilities which were perhaps not envisaged when it originated. These new responsibilities were neither a drift nor negation of its purpose. On the contrary it was more an affirmation of its role in the sense that for maintenance of order there are certain prerequisites such as minimum standard or quality of life. It is common sense that where there is widespread deprivation, there cannot be o rder. It is juridical ambition to expect a hungry man to be a law abiding citizen. There have to be ways and means through which people should be able to earn their livelihood to start with and opening and widening up of opportunities to improve their quality of life or what Amartya Sen conceptualised as “endowments and capabilities” (Sen 1999). If such conditions are not created, it is not only that the individual violates the law but the law c annot be enforced because of its poor moral and material base. In fact, Karl Marx argued almost one and half centuries back that equality before the law without equality in concrete existence is juridical illusion (Marx and Engels 1846). This reality calls for “w elfarism” and greater equality which become a part of the g overnance warranting passing of several laws for trans formation of the society. It is in this process that the very notion of rights has got enlarged. If the state does not work in this d irection there are bound to be eruptions outside the formal l egal framework.

As the very notion of the nation state in the developing world is in the process of stabilisation, the global market forces backed by the brutal force of the United States (US) and crude economic forces of the World Bank and International Monetary Fund are compelling these emerging states to fall in line (Chomsky and Herman 1979; see also Perkins 2004). A sovereign state and g lobal economic order are contradiction in terms; for societies at different stages of development and enormous cultural diversities and styles of life are being pushed or dragged into the global

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o rder or what has come to be described as structural adjustment resulting in ruptures which are evident in different parts of the world (Bharathi 2005): As economic processes are calling for a borderless world, the reactions are also bound to be on a global scale. The uncertainty and discomfort with the new world order reached a point where nobody is able to anticipate which part of the world would be hit at what point of time. It could be New York, Lahore, London or Mumbai. These violent acts of those members of the world who are not able to adjust or those who are rejecting the model are put in the broad category called “ t errorism”. There are, however, other equally powerful expressions characterised by varied nomenclature – insurgency, extremism, ethnicism, separatism, or Naxalism. The way the state treated Naxalite movement is one of the standing testimonies to the lopsided approach. Every political party in India at one time or the other openly held that it was a socio-economic problem but dealt with it as law and order once the parties came to power. The question under debate is: how and why the nation state has been reacting and responding the way it did to these growing threats to its legitimacy? The way they handled these critical challenges is a sad reflection of the nature of the Indian state. While all the dimensions of this phenomenon need deeper probings, this paper examines the ways that Indian state has been responding to the challenges and examines the six decades of experience of repressive laws including those being enacted in the wake of globalisation and their impact on the very notion of unrestrained freedom which a liberal state is supposed to g uarantee (Mill 1859).

It is against this backdrop that one has to discuss terrorism and human rights so as to contextualise the process. It would be useful to discuss the origin and changing contours of terrorism, and the way terrorism is interpreted and responded to by the state. Broadly there are two approaches; one is contextualist and the other is confrontationalist. The contextualists maintain that the origins of the outbursts lie not inside the outbursts but outside the historical and socio-economic processes. They assume that an average h uman being craves to live an orderly, peaceful and (given the proper conditions and opportunities) a meaningful life. It is this search for order, peace, identity and avenues for creative expression that are at the root of most of the problems. There are a number of ways through which human beings could be divided, deprived and alienated. These undesirable processes could continuously be overcome, if only the mainstream political processes strive towards a responsive and sensitive political s ystem. It is the drift of mainstream politics from the democratic and transformative visions that can be one of the important causes for immediate provocation for protest which can grow into frightful violence. As the violence grows quite often the initial causes are lost sight of and rulers get engrossed with the violence per se and take recourse to different forms of force to deal with the otherwise complex s ocio-political situation. It is in this process that the outbursts get aggravated into a chronic problem of law and order. The contextualists hold that those dealing with such situations should get into deeper processes and find h istorical alternative possibilities of dealing with the situation more through imaginative and creative political action than use of brute force.

The confrontationalist approach, on the contrary, maintains that human beings are basically peace loving and therefore prefer an orderly life. But there are always misconceived causes espoused by the misled and crime-prone individuals and groups whose sole purpose is to disturb the social order as that is the only way they know how to express themselves. Such individuals or groups are not amenable to reason. Since the law is rooted in human reason, such rational ordinary laws cannot deal with explosive situations. They argue that these “distortions” should be put down with an iron hand. This is the dominant political view in India and the Bharatiya Janata Party (BJP) represents this view forcefully and this is one party which keeps on reiterating the need for most repressive laws without even an iota of doubt in the effectiveness of those methods. They dismiss attempts at reasoning out the movements as useless, if not a dangerous exercise. They go one step forward and maintain that contextualists are indirect associates and abettors of violence and disorder. It is this logic that lends support to repressive laws. The supporters make use of any quantum of force and the state agencies endorse any level of arbitrary exercise of power. Every law, however repressive it could be, contains elements of reason and built-in restraint. No law can ever confer infinite power on the state agencies to straight away extinguish the life of even the worst terrorist. For that could be negation of its basic purpose. However, in the course of encountering these movements or violent expressions, the state agencies in most parts of the world have come not to c onform to any legal limitations. The confrontationalists lend the

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necessary support to such arbitrary actions not sanctioned by the law. The state not willing to see the other side enacts law after law empowering itself with repressive and arbitrary power and also takes a very lenient view of all those actions outside the law that the state agencies indulge in. The extra judicial killings or encounters which have almost become systemic represent such serious perversion in the state behaviour.

There is also a new phenomenon of cross border terrorism. There could be several causes for it. In a globalising world order, the states unable to respond to the internal demands can shift the crisis to the neighbouring countries and generate mass fear to d ivert the public attention. Once a state succeeds in mobilising the public opinion and shifts “the causes” for internal crisis to external adversaries, it becomes difficult for the people to put pressure on their government for solving the basic problems. There are also several instances where nations are at loggerheads with each other for various historical reasons continuously breeding violence. They under this pretext maintain that violence cannot be dealt by the ordinary municipal laws and enact repressive laws which are used not only against the external enemy but internal dissent. Thus cross border terrorism contributes in a large measure to a rbitrary exercise of power against ones own citizens.

2 The Repressive Laws

It is in this backdrop one can look at the laws that have been e nacted in India as a part of dealing with an “extraordinary s ituation”, called terrorism as India is one nation which confronts wide-ranging challenges which have come to assume the socalled “terrorist forms”. How these challenges are dealt with and what are the implications for human rights can be a useful exercise. If one looks at the history of legislation on terrorism or disturbance, there was the Preventive Detention Act at the advent of independence followed by the Punjab Security Act 1955, Assam Disturbed Areas Act 1955, and the Armed Forces (Assam and Manipur) Special Powers Act, 1958. In the 1960s and 1970s there were two major acts passed in each decade and in the 1980s there were five acts and in the 1990s there were two acts. There are about 20 to 30 repressive acts passed either at the central or the state levels. Of all these four legislations, viz, Armed Forces Special Powers Act, Terrorist and Disruptive Activities (TADA) Act, Prevention of Terrorist Activities (POTA) Act and the Unlawful Activities (Prevention) Amendment Act are selected for a critical examination as they have been not only extensively used or misused but have had far-reaching impact on the overall democratic structure and liberties and freedoms of the Indian citizens.

2.1 The Armed Forces (Assam and Manipur) Special Powers Act- 1958

This is one of the earliest repressive laws (after Preventive Detention) to be introduced in post-independence India. This is a reflection on several emerging developments and trends in building the nation state, primarily on Indian independence which was certainly a landmark in the evolution of democratic governance as it was a movement that challenged the colonial and imperial forces for their undemocratic and exploitative stranglehold over the subcontinent and challenged the legal and moral basis of their repressive laws like the Rowlat Act. Having fought against such laws, that the rulers in free India should bring a law not qualitatively different from colonial laws in the very first decade after independence is not a promising beginning for democratic India. This specific law was enacted to deal with the north- eastern region whose process of integration with the Indian state remains an unfinished task (for detailed account see Mishra 2000). This also shows that problems of territorial and national integration, instead of being solved as a part of the National Freedom Movement, have been left to the wisdom of the post-independent State. That the Indian government had no satisfactory solution to such problems is evident from its responses which lacked p olitical content.

North-eastern India has been particularly problematic as certain parts have been claming autonomy, if not, cessation from the Indian union. As there were rebellious armed assertions, there was the Armed Forces Special Powers Act, 1958 to deal with the problem. The Act states that it is to:

enable certain special powers to be conferred upon the members of the Armed Forces in disturbed areas in the State of Assam and the Union Territory of Manipur.2

The Act further states:

if the Governor of Assam or the Chief Commissioner of Manipur is of the opinion that the whole or any part of the State of Assam or the U nion Territory of Manipur as the case may be, is in such a disturbed or dangerous condition that the use of Armed Forces in aid of the civil power is necessary, he may, by notification of the official Gazette d eclare the whole or any part to be disturbed area.3

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The Act confers the power to any commissioned officer, warrant officer, non-commissioned officer or any other person of e quivalent rank in the armed forces to:

fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or the order, if he is of the opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider n ecessary.4

It also empowers these officers for “prohibiting the assembly of five or more persons, or carrying of weapons or the things capable of being used as weapons or fire-arms, ammunition or explosive substances”.5 The Act also gives the power to the armed forces to:

arrest without warrant any person who has committed a cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisable offence and may use such force as may be necessary to effect the arrest.

In addition, the armed forces have the power

to enter and search without warrant any premises, to make any arrest, recover any person to be wrongfully restrained or confined.6

The Act guarantees impunity to the armed forces that no prosecution, writ or other legal proceedings shall be instituted except with the previous sanction of the central government against any person in respect of anything done or purported to be done in exercise of these powers conferred by this Act. The only check that is provided in the Act is that any person arrested and taken into custody under this Act shall be handed over to the officer- in-charge of the nearest police station with the least possible delay, together with a report of the circumstances, o ccasioning the arrest.7

After almost one and half decades in 1972 the Act was amended not to contain or tame the arbitrary powers but to extend the Act in addition to the states of Assam and Manipur, to Meghalaya, Nagaland and Tripura and the union territories of Arunachal Pradesh and Mizoram and in 1983 the Armed Forces (Punjab and Chandigarh) Special Powers Act was enacted.8 This Act enlarges the scope of the power of armed forces such as “seize any property reasonably suspected to be stolen property”9 and added an additional provision:

stop, search and seize any vehicle or vessel reasonably suspected to be carrying any person who is a proclaimed offender, or any person who has committed a non-cognisable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a noncognisable offence or any person who is carrying any arms, ammunition or explosive substance believed to be unlawfully held by him and may for that purpose use such force as may be necessary to effect such a stoppage, search or seizure as the case may be.10

This Act also extends the ambit of search to include “powers to break open locks of any door, almirah, safebox, cupboard, drawer, package or any other thing, if the key is withheld”.11 With regard to the impunity, while the earlier Act mentioned protection of persons acting under the Act, this Act adds “protection of persons acting in good faith”.12

In 1990 the Armed Forces (Jammu Kashmir) Special Powers Act was enforced in Kashmir.13 The Act further enlarged the n otion of disturbed areas and dangerous conditions so as to include:

activities involving terrorist acts directed towards overawing the g overnment established as by law or striking terror in the people or any section of the people or alienating any section of the people or a dversely affecting the harmony amongst different sections of the p eople.14

and further enlarged it by adding activities

directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or bringing about secession of a part of the territory of India from the union or causing insult to the I ndian N ational Flag, the Indian National Anthem and the Constitution of India.15

After five decades of the Act being in force, there was a massive protest from ordinary people in the north-east and six women in Manipur walked without robes towards the Raj B havan in protest against the arbitrary use of the Act by the armed forces.16 This troubled the conscience of the nation to an extent that the prime minister promised to review, if not repeal the Act. In fact in one of the interactions between the officers of the armed forces and civil rights activists facilitated by the National Human Rights Commission, the then army chief, Shankar Roy Choudhary, did observe that the armed forces should not be drawn into internal civilian conflicts and also was inclined to critically relook at the Armed Forces Special Powers Act.17 The question one has to ask is: why did not the Act and its amendments produce the desired impact? There has been no review on the ineffectiveness or failure of the Act to realise its intended purpose! Nor was there an attempt to critically look at the violation of the rights of innocent people by the state agencies.

The armed forces hardly realise that they have been posted to sensitive areas to win over the people and not to defeat them. For the defeated can never identify emotionally with a nation state which treated them as adversaries and not as citizens for a long time. It is sad that Parliament never asked the executive this searching question. In the absence of a critical review, the life of the acts go on getting extended conferring more arbitrary powers and enlarging the territorial jurisdiction of the act. This uncritical and mechanical extension and expansion of powers reach a l ogical limit leading to public protest by ordinary innocent people. The governments which are not reflective and creative neither retrospect nor reflect on the long-term impact of mechanical a pproach and end up in a vicious cycle: this cycle is nowhere more evident than the subsequent enactment of repressive laws.

2.2 Terrorist and Disruptive Activities (Prevention) Act, 1987

It was in 1985 that the TADA Act was enacted just to be in force for two years. In the normal course it ought to have ceased in 1987. Instead, the Act was amended and extended in 1987. In the Statement of Objects and Reasons of TADA Act (1987), it is stated that the 1985 Act was introduced in the background of escalating terrorist activities and it was expected that it would be possible to control the menace within a period of two years and, therefore, the life of the Act was restricted to a period of two years from the date of commencement. However, the statement admits that:

on account of various factors what were the stray incidents in the b eginning have now become a continuing menace specially in States like Punjab.

It further added:

on the basis of experience, it was felt that in order to combat and cope with terrorist and disruptive activities effectively it is not only necessary to continue the said law but also to strengthen it further.18

It, therefore, proposed that:

persons in possession of certain arms and ammunition specified in the Arms rules 1962 or other explosive substances unauthorisedly in an area to be notified by the State government shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and with fine.19

It is further provided that in the case of a person declared as a

proclaimed offender in a terrorist case: the evidence regarding his identification by witnesses on the basis of his photograph shall have the same value as the evidence of a test identification parade.20

The Act does not stop with the offenders but extends to:

whoever conspires or attempts to commit or advocates, abets, advises or incites or knowingly facilitates the commission of a terrorist act or any act preparatory to a terrorist to act shall also be punishable in the same manner and with the same quantum of punishment.21

The same is true with those who: harbour or conceal or attempts to harbour or conceal, any terrorist shall be punishable.22

The ambit of punishment extends not only to those: who commit offence but include person who is a member of the terrorist organisation.23

There is yet another category that includes those:

who hold any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds.24 The Act also includes disruptive activities that are catalogued

in a different way from the terrorist activities. The disruption is

defined as:

any action taken, whether by speech or through any other media or in any other manner whatsoever which questions, disrupts or is intended to disrupt, whether directly or indirectly the sovereignty and territorial integrity of India or which is intended to bring about or supports any claims whether directly or indirectly for the cessation of any part of India.25

It does not stop here. It also declares that any action taken,

whether by act or by speech or through any other media or in any

other manner which:

advocates, advises, suggests or incites or predicts, prophesies or pronounces or otherwise expresses in such a manner as to incite, advise, suggest or prompt the killing or the destruction of any person bound by oath under the Constitution to uphold the sovereignty and integrity of India or any public servant shall be deemed to be disruptive activity.26 With respect to conferment of powers the central government can confer on any officer of the central government powers exercisable by a police officer such as arrest, investigation and prosecution of persons before any court.27 The Act empowers the designated court that in the case of those persons who are convicted for any offence under this act, can in addition to the punishment “order for declaring any property forfeited to the government”.28 The central government may make such rules that provide for “regulating the conduct of persons in respect of areas the control of which is considered necessary or expedient and the removal of such persons from such areas and also the entry into and search of any vehicle, vessel or a ircraft or any place”.29

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This Act also makes a major departure from the established practice with regard to the admissibility of evidence and presumption of innocence. The Act states:

notwithstanding anything contained in the Indian Penal Code or in the Indian Evidence Act 1872, a confession made by a person before a police officer not lower in rank than a superintendent of police and recorded by such police officer in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds of images can be reproduced shall be admissible in the trial of such person

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for such an offence under this Act.

In the normal criminal law the accused is innocent until the guilt is proved, whereas in this Act it states: the designated Court shall presume, unless the contrary is proved, that the accused had committed such offence.31 It also provides for impunity like the earlier Act when it says that:

no suit, prosecution or other legal proceedings shall lie against the Central Government or the State Government or any officer or authority of the Central or State Government or any other authority on whom powers have been conferred under this Act or any rules made there under, for anything which is in good faith done or purported to be done in pursuance of this Act.32

The Act became so controversial and there has been so much of evidence about the abuse of the powers and such a massive o pposition to the Act that it could not be continued. However, it is sad and also tragic that it got reincarnated in 2002 in the form of POTA.

2.3 The Prevention of Terrorism Act (2002)

In the introduction to the POTA, as was the case with the earlier two acts, the objects and reason reflect the context and the conditions of the prevailing state of affairs. It points out “the country faces multifarious challenges to the management of its internal security”. It adds:

there is an upsurge of terrorist activities, intensification of crossborder terrorist activities, and insurgent groups in different parts of the country. Very often, organised crime and terrorist activities are closely inter-linked. 33

It further adds:

terrorism has now acquired global dimensions and has become a challenge for the entire world. The search and methods adopted by terrorist groups and organisations take advantage of modern means of communication and technology using high-tech facilities available in the form of communication systems, transport, sophisticated arms and various means.

Therefore, it draws the inference that: the existing criminal justice system is not designed to deal with the types of heinous crimes with which the proposed law deals with34 Unlike some of the earlier acts, this Act extends to the whole of India and to citizens of India outside India, persons in the service of the Government wherever they may be and persons on ships

and air crafts.35 The Act enlarges the scope of offence by including those actions that:

cause damage or destruction of any property or equipment used or i ntended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies.

The Act also extends: powers of investigating officer to seize any cash36 The Act says: a person commits an offence if he belongs or professes to belong to

t errorist organisation. The Act is categorical in its assertion that a person commits an offence:

if he addresses a meeting for the purpose of encouraging support for a terrorist organisation or to further its activities. For the purposes of this section, the expression “meeting” means a meeting of three or more persons whether or not the public is admitted.37

It includes fund raising for a terrorist organisation to be an offence. While such an act being considered an offence is understandable, the problem is the way fund raising is defined. It says a person commits an offence

if he invites another to provide money or other property

and adds that a person commits an offence if he receives money or other property and provides money or other property and knows or has reasonable cause to suspect that it will or may be used for the purpose of terrorism.38

In the case of evidence for an offence there is a clause for recording evidence in the absence of the accused wherein the court is competent to try or commit for trial such a person for the offence complained of, may, in his absence examine the witnesses produced on behalf of the prosecution and record their depositions and any such deposition, may on the arrest of such person, be given in evidence against him on the inquiry into or trial for the offence with which he is charged.39

The more striking feature of this Act, unlike its predecessor TADA, is “inclusion of not only Power of Declaration of an organisation as a Terrorist organisation but there is a schedule listing the organisations”. In this respect the central government has been given the power to add or remove an organisation from the schedule.40

That POTA, is more stringent than the TADA, is nowhere more violative of right to privacy than in the clauses “relating to interception of communication”.41 A police officer not below the rank of superintendent of police (sp) supervising the investigation of any terrorist act under this Act may submit an application in w riting to the competent authority for an order authorising or a pproving the interception of wire, electronic or oral communication by the investigating authority when he believes that such interception may provide or has provided evidence of any offence involving a terrorist act.42 The Act also authorises the concerned authorities to:

direct that a provider of wire or electronic communication service, landlord, custodian or other person shall furnish to the police forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference of the services that such service provider, landlord, custodian is providing to the person whose communication are to be intercepted.43

The Act also incorporates a provision that:

the information gathered through interception is admissible as e vidence against the accused in the court during the trail of a case.44 The Act empowers that if the investigating officer fails to com

plete the investigation in a period of 90 days, the special court shall extend the said period up to 180 days on the report of the public prosecutor indicating the progress of the accused beyond the said period of 90 days.45 Under the normal code of criminal procedure, the process of arrest does not apply in these trails as no person accused of an offence punishable under this Act in custody be released on bail or on his own bond unless the court gives the public prosecutor an opportunity of being heard and if the latter opposed the bail the accused cannot be released until the court is satisfied that there are reasons to believe that the accused might have not committed the offence.46

As was the case with TADA even in POTA the presumption of

o ffence is such that “as the special court is called upon to draw an adverse inference from any evidence that is brought to its n otice”.47 The Act also has a provision “for impounding the p assport and arms licence of person charge-sheeted under this Act”.48 As was the case with TADA, the Act also provides for power for regulating the conduct of persons and the removal of such p ersons from the area and also the entry into vehicle, vessel or aircraft or any place whatsoever.49

Of the three acts the use of POTA became so notorious that its scrapping became a part of the electoral promise of the United Progressive Alliance (UPA) in the 2004 elections and it was repealed as promised. The demand for its revival has been kept alive by particularly the right wing political party BJP in spite of its dismal handling of terrorism when this very Act was in full force and they were in power. The demand acquired momentum in the wake of 26 November 2008 Mumbai attacks. The human rights view point opposing the revival of such a draconian law got drowned in the noise created by particularly the electronic media. This undue pressure and propaganda led to the incorporation of all the extraordinary objectionable provisions of u npopular repressive laws in the amendment to the Unlawful Activities (Prevention) Amendment Act (2008).

2.4 Unlawful Activities (Prevention) Amendment Act (2008)

The Unlawful Activities (Prevention) Amendment Act, 2008 in the statement on Object and Reasons for the Amendment, the home minister admitted that:

in view of the concerns and complaints, expressed about the manner in which provisions of POTA have been applied including instances of misuse, the Act was repealed in 2004.

and added

keeping in view that India has been a front runner in the global fight against terrorism… resolve not to allow any compromise in the fight against terrorism, the Unlawful Activities (Prevention) Act, 1967 was amended to make provisions to deal with terrorism and terrorist a ctivities.50

It further adds:

there have been significant developments since then at the national and international level, terrorist incidents and activities sponsored from across the border, in various parts of India and elsewhere continue to cause concern.51

He stated that:

the legal framework for dealing with such activities, including measures related to financing of terrorism, has been further reviewed.52

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As the present law was found inadequate the amendment aims at making further provisions with the aim of strengthening the arrange

ment for speedy investigation, prosecution and trial of cases related to

terrorism related offences.53

The Unlawful Activities (Prevention) Act 0f 1967 has been substantially amended to incorporate the undemocratic provisions of TADA and POTA. In all about 15 sections of the principal act have been tampered with. Of all the sections the serious changes include amendment of the period of detention from 15 days to 90 days extendable to 180 days, amendment to Section 167 and Section 438 (6) of the penal code relating to the bail and amendment to Section 15 relating to presumption of innocence are undemocratic and negation of rule of law from a human rights perspective. These amendments do make a substantive difference to the form and content of criminal justice system.54 The tampering of the original law which commenced in early 1950s in an incremental and piecemeal form has become over a period of time an integral part of penal code and criminal procedure of a constitutional democracy.

This particular amendment is far more harmful to Indian democracy than any of the earlier repressive laws for at least the following four reasons. The first is that the amendment cites 10 Resolutions of the United Nations Security Council passed from 1999 to 2007 as justification for this undemocratic amendment.55 It states:

the Security Council of the UN in its 4385th meeting adopted Resolution 1373 (2001) (20 September 2001, under Chapter VII of the charter of UN) requiring all the states to take action against certain terrorist organisations, to freeze the assets and other economic resources to prevent the entry into or the transit through their territory, and prevent the direct or indirect supply, sale or transfer of arms and ammunitions to individuals or entities listed in the Schedule.56

This moral justification is offered partly to persuade the international community that the law conforms to the UN standards. Such approach to international universal human rights standards setting endeavour commenced in 1948 negates the form and spirit of international vision. It is equally disturbing that the UN Security Council in its over anxiety about terrorism is becoming increasingly oblivious to the very purpose for which this international agency was founded.

The second reason is while almost all the earlier repressive laws were considered extraordinary and therefore there was a time stipulation, the present amendment which literally smuggles many draconian provisions of TADA and POTA into the principal act betrays the promise that the present power configuration made to the electorate in the 2004 elections. The amendment now has made what were otherwise considered extraordinary provisions integral to the criminal justice system of the country. The democratic vision and commitment to rule of law that Indian Constitution made in the wake of the freedom movement has been systematically stifled and the overall governance is moving towards an authoritarian, if not a fascist regime.57

The third reason is that the amendment was a result of pressure largely built by the electronic media. The propaganda and one-sided presentation by the media of Mumbai attacks preceding the amendment, to a critical viewer, almost sounded m otivated and archestrated. The four to five English channels

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t elecast non-stop the event without even once raising the questions as to what are the roots of terrorism, who these terrorists are and why young people indulge in such reckless violence knowing full well that there were very little chance of their survival. How could such a small number enter a nation of India’s size with its widely present security forces and with one of the most powerful armies in the subcontinent? What are the alternative ways that these problems could be tackled by the national and the international community? These English channels have reasonably talented persons who are capable of raising such debates. In this case it was a gross abuse of talent. In fact in times of national crisis, the media should provide a sense of balance and maturity to public discourse. Even those committed to freedom of media got a feeling that the media overstepped all decent democratic limits. Such approach, one should realise, is negative and counterproductive. It is counterproductive not only to social movements, people’s democratic struggles and parliamentary

o pposition but to the very freedom of media itself.

Four, these repressive laws, whether they are useful in dealing with international terrorism or not, they are used against all forms of opposition within the country. Such an opposition may not have anything to do with terrorism not to talk of international terrorism. In fact, rarely have repressive laws been used or have been useful in handling terrorism of such magnitude. The laws are widely used to suppress the domestic democratic dissent (Balagopal 2000). Taking advantage of the overall climate of insecurity the repressive laws are being enacted literally by every nation including those nations who have not even been remotely hit by terrorism. One cannot escape the conclusion that this has been a part of pushing through neoliberal agenda which compels the nation state to go for structural adjustment which is essentially anti-labour (Baxi 2008; Harvey 2006).

Terrorism is being used as a pretext to bring in the laws which cannot otherwise so conveniently be pushed through. The repressive laws have been used against the democratic struggles, environmental activists, civil liberties and human rights advocates, even duly elected legislators. For instance the Unlawful Activities (Prevention) Amendment Act which came into force just recently to deal with international terrorism has been used against a civil liberties leader of Andhra Pradesh Civil Liberties Committee.58 Of course, the detention of Binayak Sen became an issue of international awareness. There was a nationwide demand for his release. The Indian State did not only not respond to the democratic pressure from within but not even to the appeal of several Nobel laureates for the release of Binayak Sen.59 It took an inordinate amount of time before the Supreme Court even granted him bail in May 2009. There are any number of men and women concerned and committed to the transformative politics behind bars detention of persons for their political beliefs reminds us that there is a loss of vision in the approach of the Indian state to s ocio-political turmoil.

3 Conclusions

The above account of growing terrorism and the legal measures that have been initiated from time to time reflects the changing or declining nature of the political capacity of the state to deal with the magnitude of the problem of terrorism. A simple analysis of the legal measure during the five decades in India after independence shows that no legal measure or no quantum of power in terms of the use of force and the severity of punishment have been helpful in containing terrorism. On the contrary, its wider spread and growing intensity has been admitted by the state time and again. This is evident in the introductory notes or the stated objects and reasons in the succeeding acts themselves. While the acts were concerned with destruction of property in the the 1950s and restricted punishments to simple imprisonment, in the 1960s the issue of threats to national integration have come up. It was in the 1970s the problem takes the form of “disturbed areas” and “terrorism” involving far more stringent measures. The story of the 1980s and 1990s is no different. It was during this period the draconian legislations like TADA and POTA were enacted.

The essence of experience of five decades with social turmoil indicates that the use of force and severity of punishment may be necessary from the state’s point of view but that the approach does not yield fruitful results is so self-evident that it does not need any further substantiation. It is pertinent to raise the question that if a particular act with enhanced power for the state organs proved to be inadequate; does this inadequacy pertain to the lack of power of the state to adequately punish the culprits or lack of political capacity of institutions and individuals in power to respond to the situation needs to be critically examined. No act at any point presented a review of the experience with the previous act and the cause for its ineffectiveness or failure. It can only be inferred from the acts that each act is based on the assumption that the power for both use of force and fear of punishment were inadequate and hence the increasing stress on more power to use force.

As there have been growing problems emanating from the socalled terrorism, correspondingly there has been growing human rights consciousness. From a human rights vantage point these problems arose from the distorted or erroneous ways of handling the problem of terrorism. The distortions include primarily the violation of rights of not of the “terrorists” per se but of the innocent law-abiding citizens. There has been substantial documentation of these violations of rights by human rights groups in Punjab, Kashmir, the north-east, Andhra Pradesh, Maharashtra, G ujarat, Tamil Nadu, West Bengal and other problem states of India. There has also been documentation of these violations by international human rights agencies like Amnesty International, Asia Watch and so on. The enquiry commissions appointed by the governments from time to time themselves and also the State and the National Human Rights Commissions point out the violations of the rights of those who are not connected nor committed to the unlawful acts. There are also judicial pronouncements as a testimony to the blatant violations of the rights of the citizen. The media, with all its limitations, played no less significant role in exposing these excesses of the state agencies.

In the course of handling terrorism the basic postulate that the state (as an institution) is a product of law is either ignored or forgotten. For no law as stated earlier can confer absolute and arbitrary power to any organ of the state. The rule of law should not be mistaken to rule by law. These two things are qualitatively command, accountability and so on. The minute there is arbidifferent: the former deals with objective standards for conduct trariness in the use of force, it has the intrinsic propensity to lead of the agencies of the state while exercising power which is both to deinstitutionalisation of behaviour. This is a process where the legal and moral and the later stands for whims and fancies of the controls and regulations built into the system to direct the collecrulers. It is legal to the extent that the power is derived from the tive effort and behaviour gets eroded as those working at the cutlaw and it is moral in the sense that the power conferred on the ting edge or lower levels like soldiers, constantly fail to make the agents of the state is also a product of trust: the trust that the neat distinction between the inside and the outside. Selective appower shall not be arbitrarily exercised. The restraints that every plications of legal procedures by supervisory levels or the politilaw provides for essentially rest on the apprehension that unre-cal masters erode the universality of norms and sanctity of the strained power is likely to take not only an arbitrary form but law and inner strength of institutions of law. This, in the ultialso can become ruthless and brutal. The restraints are also nec-mate, can end up in despotic governance with no regard to any of essary to see that at no point force used by the State lose sight of the human rights standards – national or international. human reason. It is also built in the very logic of the situation that The strength of the human rights depends on the depth of the “unleashing of force by an organised State” instead of containing law, vitality of the society, vision of the rulers, vibrancy of the instituterrorism may aggravate the overall situation at one level and at tions and use of discretionary powers. Terrorism is one part of socianother level the state machinery itself may start acquiring the etal experience, which calls for unusual abilities and creativity. If methods and habits of the adversary60 resulting in the disappear-one presupposes that terrorism has its roots in human ‘‘unreason” or ance of the qualitative difference between the legally constituted “irrationality” the solution should spring from human reason and state and impulsively or contextually constituted terrorist. creative political potential. The tragedy of the governance has been

The excessive use of force by the state apparatus not only does that instead of bringing in higher values into a terror-stricken sociharm to the cause of human rights but become counterproduc-ety, the State and more particularly the law enforcing agencies are tive to the internal working of the state itself. The beauty of the ending up imitating and imbibing terrorist methods and culture. law is that it not only defines the relation between the state This is the inevitable fallout of mechanistic confrontationalist apagents and the citizens but also structures the internal organisa-proach to the national or international turmoil which in essence is tional relations in terms of hierarchy, division of work, unity of political. That is the crux of the crisis of civilised governance.

Notes 29 Ibid. Section 28 (2)(a)(b). Committee has been detained under this Act.

30 Ibid. Section 15. 59 Binayak Sen, a renouned medical practitioner with

1743, trans Maurice Cranston (London: Penguin 31 Ibid. Section 21(d).

1 See Jean Jacques Rousseau, The Social Contract,

societal concerns has been detained for more than Books), 1977. 32 Ibid. Section 26.

one year. There has been tremendous pressure, national and international, for his release. This in2 Government of India (1958): The Armed Forces 33 Government of India (2002): “The Prevention of cluded an appeal by several Nobel laureates.

Special Powers Act, Section 19(1). Terrorism Act (2002)”, see Statement of Objects 60 Thomas Paine argues that the people by nature

3 Ibid. Section 3. All citations in italics indicate our and Reasons.

are not violent, they only reproduce the cruel emphases.34 Ibid. Section 1(2).

methods used by the State. See Thomas Paine, 4 Ibid.Section 4. 35 Ibid. Section 1(2&4).

Rights of Man, op cit.

5 Ibid. Section 4(a).36 Ibid. Section 7 (6).

6 Ibid.Section 5(20). 37 Ibid. Section 21 (3-4).

7 Ibid. Section 6(37). 38 Ibid. Section 22 (A) (a&b).

References

8 Government of India, The Armed Forces Special 39 Ibid. Section 21(d).

Balagopal, K (2000): “Law Commission’s View of Ter-Powers Act, 1983. 40 Ibid. Section 19.

rorism”, Economic & Political Weekly, Vol 42(36),

9 Ibid. Section 4(d). 41 Ibid. Section 36.

17-23 June.

10 Ibid. Section 4(c) 42 Ibid. Section 38(1).

Baxi, Upendra (2008): Future of Human Rights (New 11 Ibid. Section 5. 43 Ibid. Section 40(2).

Delhi: Oxford University Press). 12 Ibid. 44 Ibid. Section 45.

Bharathi, M (2005): “Transforming of Structure, De13 Government of India, The Armed Forces (Jammu 45 Ibid. Section 49 (2)(b).

velopment Projects and Rights of Human Being”,

Kashmir) Special Powers Act, 1990, see Section 1(2).

46 Ibid. Section 49 (6)(7) Indian Journal of Human Rights, Vol 9, Nos 1 and 14 Ibid. Section 3(a).

47 Ibid. Section 53(b). 2, January-December. 15 Ibid. Section 1(b).

48 Ibid. Section 59. Chomsky, Noam and Edward S Herman (1979): The 16 This was in the wake of raping and killing of Mano-49 Ibid. Section 62 (2)(a)(b). Washington Connection and Third World Facism rama allegedly by the armed forces. See for what (Boston: South End Press).

50 Government of India (2008): The Unlawful Ac

the armed forces have done in this part of India, A tivities (Prevention) Amendment Act (2008), see GoI (1958): The Armed Forces Special Powers Act, Gov-Fact Finding Report on Manipur Agitation (2004), Statement of Objects and Reasons. ernment of India.

Human Rights Forum, Hyderabad (in Telugu).

51 Ibid. Harve, David (2006): Space of Globalisation: Towards

17 One of the authors was a participant in this con

52 Ibid. a Theory of Uneven Geographical Development

sultation.

(London: Verso Publication).

53 For a comprehensive review of the undemocratic

18 Government of India (1987): see “Statements of provisions of the Act see Ravi Nair (2009) “Re-Marx, Karl and Friedrich Engels (1846): The German Objects and Reasons”, Terrorist and Disruptive peating Past Mistakes”, Economic & Political Ideology, C J Arthur (ed.) (London: Lawrence and Activities (Prevention) Act, 1987.

Weekly, Vol 44, No 8, January. Wishart, 1970).

19 Ibid. Section 4.

54 The Unlawful Activities (Prevention) Amendment Mill, John Stuart (1859): On Liberty, Gertrude Him20 Ibid. Section 22.

Act 2008, op cit. melfarb (ed.) (Harmondsworth: Penguin, 1984). 21 Ibid. Section 3(3).

55 Ibid. Mishra, Udayan (2000): “The Periphery Strikes Back”, 22 Ibid. Section 3(4). 56 Ibid. Indian Institute of Advanced Studies, Shimla. 23 Ibid. Section 3(5).

57 Narendra Modi is being projected as a potential Paine, Thomas (1954): Rights of Man and Citizen 24 Ibid. Section 3(4). prime ministerial candidate is not all that an ac-(L ondon: J M Dent, Sons Limited). 25 Ibid. Section 4 (2)(i)(ii). cident. That alternative is kept open by the Indian Perkins, John (2004): Confessions of an Economic 26 Ibid. Section 4 (3)(a)(b). political system. Some of the leading industrial-H itman (Portland: Berrett-Koehler). 27 Ibid. Section 7 (1)(b). ists have openly supported this alternative. Sen, Amartya (1999): Freedom as Development (New 28 Ibid. Section 8(1). 58 Joint secretary of Andhra Pradesh Civil Liberties York: Oxford University Press).

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july 11, 2009 vol xliv no 28

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